In re Savannah L.

Filed 11/28/05 In re Savannah L. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

In re SAVANNAH L., a Person Coming Under the Juvenile Court Law.
MENDOCINO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. EDWARD L., Defendant and Appellant.	A109581 (Mendocino County Super. Ct. No. SCUK-JVSQ-04-14206-01)

Edward L. (Father) appeals after the juvenile court denied him reunification services with his daughter Savannah L., a dependent child. He contends the evidence does not support the juvenile court’s finding that reunification services would be detrimental to Savannah, and that the court acted under a misunderstanding of the applicable law. We affirm.

I. BACKGROUND

The Mendocino County Department of Social Services filed a petition under Welfare and Institutions Code[1] section 300 on December 15, 2004. The petition alleged that Savannah L. and Ashlynn B. lived with their mother, D. B. (Mother). According to the petition, the family home was filthy, smelling of cat and human urine, with rotting food and garbage. The kitchen sink was overflowing with cold dishwater, with grease floating on top. The house was cluttered. An old car battery was attached to an electric heater with wires. Mother had an ongoing problem with substance abuse, which impaired her ability to care for her children and to manage her anger. The petition alleged that on several occasions, Mother had left her two daughters with a male friend, Geraldo P., who had sexually molested the girls.[2] The petition also alleged that Savannah’s father, Edward L., failed to provide for physical, emotional, or financial support.[3] According to a detention report, when the girls were detained, four-year-old Savannah was extremely dirty, she smelled bad, and her hair was matted and dirty. Ashlynn, who was four months old, had a severe case of diaper rash. Mother said that Ashlynn had not been to the doctor since she was one month old and did not need to see a doctor.

Father, who was incarcerated at the Correctional Training Facility at Soledad, was represented by counsel at the February 8, 2005, jurisdiction hearing. His counsel submitted on the jurisdiction report. The juvenile court found it had jurisdiction.

Savannah’s great-grandmother, June M., filed a de facto parent request on February 23, 2005, indicating Savannah had been living with her since February 3, 2005.

According to the disposition report, Mother’s mother, Lori P., reported that Savannah last saw Father when she was about one year old. Father was incarcerated in Southern California for burglary and possession of a controlled substance. He expected to be released in October 2005. He had a criminal history dating from 1990, including many arrests and four previous convictions for drug-related offenses. The report stated that Father had had “only one or two contacts” with Savannah during her lifetime, that he had made no attempt to ascertain her status or well-being during the life of the case, and that his single contact with the social worker had been to request an attorney. The social worker did not believe that reunification services for Father would benefit Savannah, and recommended that no services be offered.

Father was present at the contested dispositional hearing on March 3, 2005. He testified that he expected to be released from prison on October 3, 2005. He had an intermittent relationship with Mother before Savannah was born. Although he and Mother did not live together, he spent as much time with Savannah as he could after she was born. In March 2001, when Savannah was three months old, Father was sent to jail on an outstanding warrant, and was no longer able to see Savannah, except for a visit when his mother died in 2002. He spent a year in jail in Southern California and was in recovery homes for 14 months. During that time, he wrote to Mother every week to ask about Savannah, and Mother gave him news about how Savannah was doing. After his residential treatment programs, Father lived for seven months in Bakersfield in the homes of various friends. He did not see Savannah during that time, apparently because he had been told he could not leave Kern County. He was using methamphetamine periodically during those seven months. He was then arrested for burglary. Since Father had been incarcerated for burglary—approximately a year—Mother had not responded to his letters. However, Mother’s mother, Lori, had been writing to Father approximately once a month and letting him know how Savannah was doing. Father had been writing to Lori about once a week; in each letter to Lori he enclosed a letter to Savannah. Mother’s counsel stipulated that Mother had received Father’s letters to Savannah regularly in the last year.

The juvenile court found by clear and convincing evidence pursuant to section 361.5, subdivision (e), that Father was incarcerated and that reunification services would be detrimental to Savannah. In doing so, the court stated, “Now, in regard to the report itself and the recommendation, the court has heard some evidence from Mr. [L.] as to what he believes is a reason for the court to order reunification services. While it seems admirable on his part that he had—in his mind, that he was thinking of the child, the court really has to look at—from the perspective of what the child could perceive and the contact the child actually had. I think there’s been a lack of personal contact and I think that’s important to the bond that the child would have with you, Mr. [L.]” The court also indicated its belief that reunification could not take place “within a six-month period, even if the court ordered services.” The court did not offer services to Father, and did not grant visitation. This timely appeal ensued.

II. DISCUSSION

Section 361.5, subdivision (e)(1), which governs the provision of reunification services to incarcerated parents, provides in pertinent part: “If the parent or guardian is incarcerated or institutionalized, the court shall order reasonable services unless the court determines, by clear and convincing evidence, those services would be detrimental to the child. In determining detriment, the court shall consider the age of the child, the degree of parent-child bonding, the length of the sentence, the nature of the treatment, the nature of the crime or illness, the degree of detriment to the child if services are not offered and, for children 10 years of age or older, the child’s attitude toward the implementation of family reunification services, and any other appropriate factors.” Thus, detriment is determined by reference to these factors. (In re James C. (2002) 104 Cal.App.4th 470, 485.) Section 361.5, subdivision (e)(1) further provides that reunification services are subject to the time limitations of section 361.5, subdivision (a). Under subdivision (a)(3), court-ordered services to some or all of a sibling group in which one member is under the age of three may be limited to six months. Reunification services may include maintaining contact through collect telephone calls, transportation services, and visitation services. (§ 361.5, subd. (e)(1)(A)-(C).)

A. Substantial Evidence to Support Disposition Order

Father challenges the sufficiency of the evidence to support the trial court’s order denying reunification services. “When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing evidence, the reviewing court must determine if there is any substantial evidence—that is, evidence which is reasonable, credible and of solid value—to support the conclusion of the trier of fact.” (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75; see also In re James C., supra, 104 Cal.App.4th at p. 484.)

Substantial evidence supports the order denying reunification services. Savannah was barely four years old at the time of detention, and the record indicates that she had seen Father on only one visit since she was three months old. Although he had written to her regularly, the juvenile court could properly conclude that Savannah was not bonded with Father. Moreover, as the juvenile court noted, it would not be possible for Father to reunify with Savannah within the six-month period to which reunification services for the sibling group of Savannah and Ashlynn could be limited under section 361.5, subdivision (a)(3).

Father contends the trial court improperly relied on the single factor of parent-child bonding in finding detriment should reunification services be offered. We first note that the court relied not only on the lack of a bond, but also on the fact that reunification would not be possible within six months—a fact that was due at least in part to the expected length of Father’s incarceration. Thus, it does not appear the court relied on only a single statutory factor.

Even if the court had relied only on the lack of parent-child bonding, we would reject Father’s argument. Father relies on In re Jonathan M. (1997) 53 Cal.App.4th 1234, 1237 (disapproved on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413‑414), and In re Dylan T. (1998) 65 Cal.App.4th 765, 774, to contend that no one of the factors enumerated in section 361.5, subsection (e)(1) can be considered as conclusive in determining detriment. Those cases do not assist Father. The court in In re Jonathan M. concluded that a 50-mile limit to the distance children could be taken to visit incarcerated parents was arbitrary. (In re Jonathan M., supra, 53 Cal.App.4th at pp. 1237-1238.) No such arbitrary factor exists here. The issue in In re Dylan T. was whether a child’s age alone could support the denial of visitation. The court concluded: “[T]he particular factor of the minor’s age, without some supporting evidence demonstrating how the age of the minor resulted in detriment when visiting the incarcerated parent, cannot be used by itself to deny visitation. . . . Any one factor or combination of factors might result in a finding of detriment, but it must be shown by clear and convincing evidence how the factor or factors result in a detriment.” (In re Dylan T., supra, 65 Cal.App.4th at pp. 773-774, italics added.) Here, the court heard evidence on the history of Father’s relationship with Savannah, and concluded that reunification services with an incarcerated parent with whom she had at best a limited bond would be detrimental to Savannah. We agree that the juvenile court could properly reach such a conclusion.[4]

B. Six-month Period for Reunification Services

Father also contends the juvenile court incorrectly assumed that reunification services for Savannah would be limited to six months. Section 361.5, subdivision (a)(3) provides: “For the purpose of placing and maintaining a sibling group together in a permanent home should reunification efforts fail, for a child in a sibling group whose members were removed from parental custody at the same time, and in which one member of the sibling group was under the age of three years on the date of initial removal from the physical custody of his or her parent or guardian, court-ordered services to some or all of the sibling group may be limited to a period of six months from the date the child entered foster care. For the purposes of this paragraph, ‘a sibling group’ shall mean two or more children who are related to each other as siblings.”

Under this definition, Savannah and Ashlynn are a sibling group. However, Father contends that the juvenile court’s statement that it believed reunification could not take place “within a six-month period, even if the court ordered services” indicates that the court mistakenly believed services for Savannah could not be extended beyond a six-month period, which would end before Father was released from prison. We see no reason to conclude the court misunderstood the applicable time limits. Indeed, the order signed on the date of the dispositional hearing admonished Mother that services for “some or all of the sibling group may be limited to six months” (italics added), and enumerated the statutory factors that could be taken into consideration in making that determination. (See § 366.21, subd. (e).) This language indicates to us that the court understood that the six-month reunification period for a sibling group that included an infant, could be—but need not be—limited to six months.

III. DISPOSITION

The order is affirmed.

________________________

RIVERA, J.

We concur:

___________________________

REARDON, Acting P. J.

___________________________

SEPULVEDA, J.

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[1] All statutory references are to the Welfare and Institutions Code.

[2] According to a January 2005 jurisdiction report, friends of Mother had reported that whenever Savannah was around Geraldo, she was not wearing panties; that Geraldo watched pornographic movies with the children present; and that he had placed his finger in Ashlynn’s genital area while masturbating. A police department report indicted that a friend of Mother’s had reported that Mother allowed Geraldo to sleep with the two girls, that he masturbated in the presence of Savannah and Ashlynn, that he masturbated with Ashlynn on his lap, and that he rubbed and bounced Ashlynn on his genital area. According to the report, Mother did not believe the accusations.

[3] Father is not Ashlynn’s father.

[4] Father argues that the trial court could not reliably have reached this conclusion in the absence of evidence of how Savannah viewed her relationship with her father. Father did not raise this contention below. In any case, bearing in mind our responsibility to resolve all conflicts in favor of the prevailing party (In re Jasmine C., supra, 70 Cal.App.4th at p. 75), we conclude there is sufficient evidence to support the conclusion that Savannah and her father had had little personal contact and that the lack of contact affected the degree of their bond.